Private “Unregulated” Food Clubs Treated Same as Illegal Drug Dealers

Raw milk is increasingly being treated the same as illegal drugs across the U.S.

Health Impact News Editor Comments: David Gumpert brings us an update on the Alvin Schlangen case in Minnesota, where the prosecutor has linked the distribution of raw milk as the same as distributing “contraband” or a “controlled substance.” This case is interesting because three of the charges against Alvin are almost identical to charges he was already acquitted of in a jury trial last September!

And, as stories like this continue to show just how much effort is being made to prosecute raw milk farmers and distributors across the U.S., the CDC just published a 10-year study on Food Borne Illnesses in the United States. So this study should show just how dangerous raw milk is, correct? There has to be some facts and figures somewhere justifying all these legal cases against raw milk producers and distributors, correct? Actually, no.

Here is what the CDC’s own facts determined were the most dangerous foods in America:

More illnesses were attributed to leafy vegetables (22%) than to any other commodity; illnesses associated with leafy vegetables were the second most frequent cause of hospitalizations (14%) and the fifth most frequent cause of death (6%).

So more people get sick from raw spinach and leafy vegetables than any other food. OK, but leafy green vegetables only came in fifth in deaths, so raw milk must be number 1, right? Nope.

More deaths were attributed to poultry (19%) than to any other commodity, and most poultry-associated deaths were caused by Listeria or Salmonella spp.

Indeed, more dairy is consumed than vegetables and poultry and does account for a lot of food borne illnesses, but even the CDC admits that these illnesses are due to commercial milk production that includes the pasteurization process:

The dairy commodity was the second most frequent food source for infections causing illnesses (14%) and deaths (10%). Foods in this commodity are typically consumed after pasteurization, which eliminates pathogens, but improper pasteurization and incidents of contamination after pasteurization occur. In our dataset, norovirus outbreaks associated with cheese illustrate the role of contamination of dairy products after pasteurization by food handlers. Because of the large volume of dairy products consumed, even infrequent contamination of commercially distributed products can result in many illnesses.

So as you read about all these attacks against raw milk suppliers across the U.S., just remember the CDC’s own data shows that whatever real risk does exist in relation to consuming raw milk and its millions of drinkers nation-wide, that it is nothing compared to the risk you take every time you visit your local supermarket to purchase legal foods the government regulates and declares “safe.”

An unlicensed organization like a food club is not only distributing “contraband,” but a “controlled substance,” in the view of a Minnesota prosecutor fighting to prevent dismissal of three misdemeanor food allegations against farmer Alvin Schlangen. In other words, if licenses aren’t purchased and regulators involved, food is no longer just food, it is in the same realm as oxycontin or morphine.

Schlangen’s lawyer, Nathan Hansen, had petitioned a court in Stearns County to dismiss three of six misdemeanor accounts against Schlangen because they are very similar to the three counts a Minneapolis jury acquitted him of last September–relating to illegal sale of raw milk and selling food without a retail license. Hansen labeled the Stearns County campaign against Schlangen “serialized prosecution.” As evidence of the state’s intent to charge Schlangen repeatedly for the same alleged crimes, he included a memo from the Minnesota Department of Agriculture about Schangen that listed possible charges against the farmer and stated the “violations…are chargeable as misdemeanor crimes in Stearns, Hennepin [where Schlangen was acquitted], and Ramsey counties of the state of Minnesota.” Hansen used as legal precedent a case in which an individual charged with several acts of reckless driving had multiple cases thrown out because they were part of the same overall incident.

In building on an allusion he made in a court hearing early last month that raw milk was “a controlled substance,” Stearns County prosecutor, William MacPhail, has expanded his argument, applying it to all unregulated food. He argues in a brief in opposition that the best way to examine Schlangen’s request is to compare it to “crimes involving sex, controlled substances and thefts.” MacPhail’s technical argument is that double jeopardy of the sort prohibited by the U.S. and Minnesota Constitutions applies only when a single episode of the same crime is involved. When separate incidents occur at different times and at different places, legal precedent doesn’t protect the defendant.

But repeatedly, the prosecutor makes a comparison between food and drugs, pornography, and theft. “In drug cases (and situations involving similar contraband as here) generally the possession of two controlled substances at the same time and place is treated as a single incident,” he states at one point.

He says later that he “has found no cases in which separate controlled substance sales, even if separated by only a short period of time and place, have been held to be part of the same behavioral incident.”

And then, “The case now before this Court has much more in common with the controlled substance, pornography, and theft cases than the cases dealing with reckless driving.”

Finally, MacPhail accuses Schlangen of seeking financial riches from his food club. “The defendant had as his sole motive the desire to sell as much contraband food as possible…in order to enrich his coffers.” As evidence, he points to evidence that Schlangen paid $3 a gallon to his farmer-supplier and charged food club members $6 a gallon. MacPhail, of course, ignores the various expenses Schlangen incurred in obtaining, packaging, and delivering product—so much so that he was on the verge of insolvency prior to his trial last fall.

What’s going on here is clearly a revving up of the food police’s fear mongering and character assassination in anticipation of a new Alvin Schlangen trial. It’s kind of like the Americans traveling in Europe asking directions—when the locals don’t understand what’s being said, the Americans simply ask their questions in a louder and louder voice. Will a jury be any more receptive to the prosecutor’s efforts to turn up the loudspeakers, and start thinking about food as a “controlled substance”? Doesn’t make a lot of sense, unless he thinks he can intimidate Schlangen into doing a plea bargain. Thus far, Schlangen has had ice running through his veins when dealing with prosecutors. I suspect the coolness will prevail, and we’ll see yet another jury trial of the Minnesota farmer.